Mealey's Toxic Torts : Mealey's : Legal News & Analysis

Mealey's Toxic Torts

January 03, 2024
Company Seeks To Compel Insurers To Produce Documents In AFFF Litigation

CHARLESTON, S.C. — A company that makes firefighting products filed a motion on Jan. 2 in South Carolina federal court seeking to compel insurance companies to produce documents in a coverage dispute related to injuries from the firefighting substance aqueous film forming foam (AFFF) in the multidistrict litigation for AFFF, arguing that the insurers have refused to produce basic categories of documents that are directly related to the issues in dispute and are “plainly subject to discovery.” The company contends that the insurers’ objections to discovery requests are not valid, especially considering that the insurers are “seeking to escape up to $1 billion in coverage.”
January 02, 2024
Judge Says Cosmetics Companies Must Produce Foreign Materials In Hair Relaxer Case

CHICAGO — A federal judge in Illinois has partially granted plaintiffs’ request for the production of numerous items in discovery in a lawsuit against Revlon Inc. and its affiliates regarding allegations that their hair relaxer products increase the risk of uterine and ovarian cancer because they contain phthalates, ruling that all of the defendants must produce foreign regulatory materials, product labels and usage instructions, scientific studies articles in scientific journals related to hair relaxer products sold outside the United States.
January 02, 2024
DuPont Parties Seek Dismissal Of PFAS Case For Failure To Plead Injury, Causation

NEW BERN, N.C. — Corteva Inc. and other affiliates of the company formerly known as E.I. DuPont de Nemours & Co. filed a motion in North Carolina federal court on Dec. 29 arguing that a polyfluoroalkyl substances (PFAS) contamination lawsuit should be dismissed for failure to adequately plead injury and causation beyond “generalized and conclusory allegations.”
January 02, 2024
DuPont Parties Say Plaintiff Fails To Allege ‘Cognizable Injury’ In PFAS Case

NEW BERN, N.C. — Corteva Inc., E.I. du Pont de Nemours & Co. and affiliates filed a motion on Dec. 29 in North Carolina federal court contending that it should dismiss a lawsuit alleging drinking water contamination from per-and polyfluoroalkyl substances (PFAS) because the plaintiff’s claims “fail to allege a cognizable injury.”
December 21, 2023
Judge: Oil Company’s Due Process Claim Against County Fails In Drilling Permit Row

LOS ANGELES — A federal judge in California has ruled that a decision by municipal authorities that nullified an oil company’s zoning clearance to conduct drilling operations stands because the company failed “to provide any admissible evidence to overcome the presumption of honesty and integrity of the adjudicatory process.” The clearance was nullified, partly, after a federal agency discovered that drilling activities had contaminated local aquifers.
December 21, 2023
Group: Government’s Bid To Compel Disclosure Of Personal Data Is ‘Baseless’

RALEIGH, N.C. — The Plaintiffs’ Leadership Group (PLG) in the Camp Lejeune Water crisis litigation has filed a response brief in North Carolina federal court arguing that the court should deny as “premature and baseless” the government’s motion to compel disclosure of plaintiffs’ dates of birth and Social Security numbers.
December 20, 2023
Amendments To Rule 702 For Expert Witness Testimony Go Into Effect

Amendments to Federal Rule of Evidence 702, Fed. R. Evid. 702, went into effect to clarify how courts should decide the admissibility of expert testimony.
December 20, 2023
Panel Should Affirm Choice Of Law Used In $185M PCB Verdict, Teachers Say

SEATTLE — Teachers who won a total award of $185 million against Monsanto Co. in 2021 for injuries from exposure to polychlorinated biphenyls (PCBs) at a Seattle-area school where they taught have filed a brief in a Washington state appeals court arguing that the trial court that heard their lawsuit did not err when it applied Missouri law over Washington’s statute of repose because a Washington Supreme Court ruling “effectively renders” the statute of repose unconstitutional.
December 19, 2023
Jury Awards $857M In Total Damages Against Monsanto For PCB Injuries

SEATTLE — A state court jury in Washington on Dec. 18 awarded plaintiffs $857 million in total damages against Monsanto Co. for injuries from exposure to polychlorinated biphenyls (PCBs) at a Seattle area school, finding that Monsanto was negligent because it supplied a product that was “not reasonably safe” due to the lack of adequate warnings.
December 15, 2023
Leasing Company Says Norfolk Southern’s Third-Party Train Derailment Case Fails

YOUNGSTOWN, Ohio — Trinity Industries Leasing Co., a third-party defendant that was sued by Norfolk Southern Corp. and Norfolk Southern Railway Co. (collectively, Norfolk Southern) in Ohio federal court in connection with the train derailment in East Palestine, Ohio, filed a reply brief on Dec. 14 arguing that the complaint should be dismissed for lack of jurisdiction and because Ohio’s long-arm statute is not co-extensive with due process.
December 15, 2023
Judge Denies Document Request, Says Flint Plaintiffs Did Not Meet Requirements

DETROIT — A federal judge in Michigan has denied a motion to compel production of unredacted versions of documents in litigation seeking $722.4 million under the Federal Tort Claims Act (FTCA) related to the Flint water crisis because the plaintiffs failed to comply with pre-filing requirements, and the judge said she could not find that the plaintiffs made a good faith attempt to resolve issues related to redactions in one specific document.
December 15, 2023
Judge Denies Sanctions Sought By Water Pollution Plaintiffs In Row With Government

HONOLULU — A federal magistrate judge in Hawaii on Dec. 14 denied a motion by residents seeking sanctions against the U.S. government related to allegations that it destroyed text message electronic evidence of two senior military leaders involved in the response to a drinking water contamination lawsuit, ruling that “given the dearth of evidence that relevant texts ever existed, the Court is hard pressed to find that the steps the Government took to preserve relevant [electronically stored information (ESI)] were not reasonable.”
December 15, 2023
Man Says Companies Concealed Link Between Paraquat And Parkinson’s Disease

EAST ST. LOUIS, Ill. — A man with Parkinson’s disease on Dec. 14 sued the makers of the pesticide paraquat in Illinois federal court alleging that they had knowledge of studies that showed the relationship between paraquat exposure and Parkinson’s disease but “actively and fraudulently concealed” the information.
December 15, 2023
Plaintiffs’ Group Seeks To Compel Government To Produce Camp Lejeune Documents

RALEIGH, N.C. — The plaintiffs’ leadership group (PLG) in the multidistrict litigation over water contamination at U.S. Marine Corps Base Camp Lejeune on Dec. 14 filed a brief in North Carolina federal court arguing that it should compel the U.S. government to produce documents pertaining to housing at the base, files held by a federal agency regarding the water at Camp Lejeune and reports indicating the identities of the personnel at the base. The PLG says the defendant’s “dilatory efforts threaten to upend the Court’s schedule.”
December 15, 2023
Flint Plaintiffs: Defendant’s Employees’ Thoughts About Mistakes Are Relevant

ANN ARBOR, Mich. — The class plaintiffs in the Flint water crisis litigation on Dec. 14 filed a brief in Michigan federal court arguing that evidence regarding whether employees of a defendant engineering firm believe that it made mistakes with respect to its work for the city is relevant and, therefore, the court should deny the firm’s request to exclude testimony on that issue.
December 14, 2023
AFFF Class Counsel Says PFAS Deal With Water Agencies Should Be Approved

CHARLESTON, S.C. — Class counsel in the multidistrict litigation for the firefighting agent known as aqueous film forming foam (AFFF), which contains per- and polyfluoroalkyl substances (PFAS), have filed a reply brief in South Carolina federal court arguing that it should deny objections to final approval of a $1.18 billion class settlement because the release of claims that is part of the deal is not “unreasonably overbroad” and predominating common questions are present.
December 14, 2023
Residents Say PFAS Water Case Belongs In State Court, Federal Issues Not Raised

HARTFORD, Conn. — Residents have filed a reply brief in Connecticut federal court arguing that it should grant an emergency motion seeking remand of their lawsuit against the Connecticut Water Co. (CWC) for drinking water contamination from per- and polyfluoroalkyl substances (PFAS) because CWC “knowingly misrepresents” the proceedings of the Judicial Panel on Multidistrict Litigation (JPMDL) as they pertain to cases brought against public water companies that have been transferred to the MDL for claims involving firefighting foam.
December 14, 2023
Firefighter Seeks 6th Circuit En Banc Review Of AFFF Ruling That Nixed His Case

CINCINNATI — A firefighter has filed a petition in the Sixth Circuit U.S. Court of Appeals seeking rehearing en banc of a panel’s ruling that he failed to allege “any plausible pathway” by which per- and polyfluoroalkyl substances (PFAS) had gotten into his bloodstream, arguing that “undisputed evidence” shows that each defendant in the class action made PFAS and bears responsibility for contaminating his blood.
December 13, 2023
Couple Asks 9th Circuit To Review Exclusion Of Experts In Glyphosate Cancer Case

SAN FRANCISCO — On Dec. 12, a couple suing Monsanto Co. related to injuries they say they have suffered from exposure to the herbicide Roundup, which contains the active ingredient glyphosate, filed a notice of appeal in the Ninth Circuit U.S. Court of Appeals seeking reversal of a district court order that excluded two of their causation experts because they did not personally engage with and evaluate the scientific literature they rely on in reaching their opinions.
December 13, 2023
Canadian Court Certifies Class In Roundup Suit Over Glyphosate’s Carcinogenicity

GUELPH, Ontario — A justice in Canada has certified a class action against Monsanto Co., its parent company and its Canadian affiliate by a class representative who seeks $2 billion in damages for a class defined as individuals in Canada who have had “significant exposure” to glyphosate, the active ingredient in Roundup. The justice determined that class requirements had been met and said “the fundamental and class-wide issue is whether glyphosate is carcinogenic.”
December 12, 2023
2nd Glyphosate Expert ‘Not Scientific At All,’ Should Be Nixed, Monsanto Says

SAN FRANCISCO — Monsanto Co. on Dec. 11 filed a brief in California federal court contending that another plaintiff’s expert in a glyphosate cancer lawsuit should be excluded, in this instance because his opinions do not meet the requirements for expert admissibility under Federal Rule of Evidence 702. Specifically, Monsanto says the expert “blindly relies” on the plaintiff’s recollection of his usage of the herbicide Roundup, and his opinion “is not scientific at all.”
December 12, 2023
Insurer Seeks Reconsideration Of Denial Of Dismissal In AFFF Coverage Action

CHARLESTON, S.C. — An insurance company has filed a reply brief in South Carolina federal court seeking reconsideration of an opinion and order denying its motion to dismiss a coverage dispute related to injuries from the firefighting substance aqueous film forming foam (AFFF) in the multidistrict litigation for AFFF, arguing that the court does not have jurisdiction over it because the insurer has no duty to defend under the policy at issue.
December 12, 2023
Revlon Says Discovery Request In Hair Relaxer Case Constitutes ‘Wasteful Conduct’

CHICAGO — Revlon Inc. and its affiliates, which were sued by women who say their hair relaxer products increase the risk of uterine and ovarian cancer because they contain phthalates, on Dec. 11 filed a response brief in Illinois federal court arguing that the court should deny the plaintiffs’ request to compel the production of materials shared with foreign regulators about non-U.S. hair relaxer products, contending that the request is “the latest example of Plaintiffs’ disorganized, wasteful conduct in these proceedings.”
December 12, 2023
Government: Woman’s Bid To Represent An Estate In Camp Lejeune Litigation Fails

RALEIGH, N.C. — The U.S. government has filed a brief in federal court in North Carolina contending that it should deny a plaintiff’s motion for partial summary judgment in litigation against the government for injuries allegedly caused by toxic water at U.S. Marine Corps Base Camp Lejeune because under the Federal Rules of Civil Procedure, summary judgment is inappropriate where there has been no opportunity for discovery of the relevant facts.
December 07, 2023
COMMENTARY: Fire & Rain: 2023 Key Decisions & Developments Impacting The Wide World Of Insurance

By Scott M. Seaman, Pedro E. Hernandez and Lisa M. Roccanova